Why the Prison Rape Elimination Act (PREA) would bring a dose of dignity to immigration detention

If you’ve ever read or seen a TV program about our penal incarceration system, you know that what goes on in jails and prisons is the stuff of nightmares. And it is increasingly coming to light that what goes on in immigration detention is not so different. In a sense, this revelation may not be very shocking considering that in 2009, about half of immigration detainees were held in detention centers operated by private entities—typically those that focus on criminal corrections “solutions”—while the other half was actually housed in jails or prisons. But despite the increasingly clear similarities between our criminal and immigration detention systems, including an awareness that sexual abuse in immigration detention is a widespread phenomenon that continues to occur, largely with impunity, there is resistance from various quarters to applying the Prison Rape Elimination Act (PREA) to immigration detainees. Women and LGBTQ detainees, in particular, will continue to pay with their dignity so long as PREA’s application to immigration detention is not ensured.

PREA was first enacted in 2003, and there is bipartisan agreement that the law was intended to apply broadly, including to immigration detention. The law enshrined a zero-tolerance policy for prison rape and sexual assault, which was backed up with standards for prevention, detention, and punishment, as well as requirements for data collection and sharing about incidents. Unfortunately for women and LGBTQ detainees, who are recognized as the most vulnerable to sexual assault in detention and who often have already experienced violence or persecution on the basis of sex or gender identity, PREA has not been applied to immigration detention.

In the absence of PREA, we have seen many courageous detainees come forward to talk about their abuse at the hands not only of other detainees but of detention staff and personnel. In October 2011, the ACLU of Texas filed a lawsuit on behalf of three female detainees who had been raped by a detention officer while in transit from the detention center to the airport or bus station—this one officer, at one facility, is thought to have sexually assaulted a total of nine women. And just a few weeks ago, the ACLU of Arizona filed a lawsuit on behalf of a transgender woman who was sexually assaulted twice during an eight-month period in detention. These incidents are a small fraction of the 185 allegations of sexual abuse filed by immigration detainees in the past five years—within this larger population, at least thirteen LGBTQ detainees have alleged having suffered sexual assault in immigration detention, five in Arizona facilities alone.

Like so many of the human rights abuses that occur in immigration detention, prison rape is preventable. Transgender and gender non-conforming (GNC) detainees, for instance, should be housed where they feel safest and most comfortable—transgender or GNC detainees should not automatically be placed in accommodations according their sex assigned at birth or in segregation. And there should be extra attention paid to preserving transgender and GNC detainees’ privacy regarding their sex and gender identity.

Ultimately, detainees of all kinds—penal and immigration—are too often kept in conditions not worthy of human dignity. To the extent that immigration detainees continue to be treated like prisoners, the law needs to recognize that rape in immigration detention is prison rape and PREA needs to apply.

The National Coalition for Immigrant Women’s Rights (NCIWR) is committed to introducing a gender lens to debates around immigration policy. For more information about NCIWR’s work–including information about how to join us–please see: http://nciwr.wordpress.com/.